Legal Lifelines
Getting an Order of Protection
What is an Order of Protection?
An Order of Protection is a legal document that is granted by either a criminal court or Family Court in New York State. An Order of Protection is designed to tell someone to refrain from offensive conduct toward you or to stay away from you completely. The first type of Order of Protection is often called a “refrain from” meaning “stop doing what you are doing” Order of Protection. The second type is called a “stay away” Order of Protection which requires the person who has been causing trouble to stay away from you, your home, your employment or school. Depending on your circumstances, you can have an Order of Protection from both a criminal court and from a Family Court and each order may have different directions to protect you from the person causing you problems.
If you are in Family Court, the protected party is you, and you will be identified as “petitioner.” The offender will be identified as the “respondent.” If you are in criminal court, the protected party is you, and you will be identified as the “victim.” The offender will be identified as the “defendant.”
What are the differences between a stay away Order of Protection and a refrain from Order of Protection?
A stay away Order of Protection orders the offender to stay away from you, the protected party and from your place of residence, business, employment, and/or school. It may also order the offender to not have any communication with you via mail, telephone, e-mail, voicemail or any other electronic means. The stay away Order of Protection also incorporates the protections found in a refrain from Order of Protection.
A refrain from Order of Protection orders the offender to refrain from committing any family offense such as assault, stalking, harassment, menacing, reckless endangerment, strangulation, disorderly conduct, criminal mischief, sexual abuse, intimidation, etc. This order will allow contact and communication between the offender and you, the protected party.
Who can get an Order of Protection?
If you are currently married, formerly married, have a child in common, or were in an intimate or currently in an intimate relationship, you may apply to your Family Court for an Order of Protection. If there is an emergency event in which you are injured or threatened, and the police are called, you may ask the police if you are entitled to an Order of Protection from a criminal court.
The information you provide to the police will be turned into a domestic incidence report (DIR). Depending on what has happened, the offender will be arrested or a bench warrant will be issued by the criminal court. There is an assistant District Attorney assigned to each criminal court to help you obtain an Order of Protection.
The District Attorney’s office will decide what crimes to charge the offender with and may need you to testify in criminal court about what happened. There are three types of crimes: felonies, misdemeanors and violations, with felonies being the most serious and violations the least serious. Which criminal court will be handling the crime depends on how serious the criminal conduct was. Felonies are always prosecuted in the County Court while the other crimes could be handled in city, town or village courts.
How do I file for an Order of Protection in Family Court?
Go to the Family Court and ask the Family Court Clerk for a Family Offense Petition. Fill out the petition to the best of your ability and you should be able to file the petition the same day. If it is an emergency, you may ask to see the judge to request a temporary Order of Protection until a court date is scheduled. If you feel your children need to be protected as well, you may request that remedy from the judge. The judge will take testimony from you by asking you some questions and you must explain to the judge why it is you or your children need the temporary order. If you have bruises or other signs of being injured, you should show the judge. Physical injuries alone are not required for a temporary order. If you are physically injured, have someone take pictures of your injuries over a series of days because bruises darken over time before going away.
If the offender owns any guns or deadly weapons, you should notify the judge and note this in your Family Offense Petition. In the event that an Order of Protection is issued, you can request that any guns or deadly weapons be confiscated from the offender while the Order of Protection remains in effect. Once the Order of Protection expires, the guns or deadly weapons will be returned to the offender.
What happens in Court?
If you receive an Order of Protection from criminal court, the District Attorney’s office will prosecute the offender in criminal court. If you apply for an Order of Protection from Family Court, you and your attorney will have the burden of proving your petition in order to get a final Order of Protection. If you cannot afford an attorney in Family Court, you may be eligible to have an attorney appointed to represent you free of charge. Sometimes this is an attorney from the county Public Defender’s office and sometimes it is a private attorney who will be assigned to help you.
What if the Order of Protection is violated?
If the offender violates the Order of Protection, you should call 911 or your local police, and let them know the order has been violated. The offender may be arrested. You also have the option of going back to Family Court and filing a Violation Petition. If you file in Family Court, you should make sure to attach any police reports or any other evidence to your Violation Petition.
How should I plan for my safety?
If you receive an Order of Protection from either criminal court or Family Court, you should take precautions for your safety and the safety of your loved ones. Some safety precautions include notifying your neighbors about your Order of Protection and asking them to call the police if the offender shows up; make copies of all important documents, such as birth certificates, social security cards, and passports and keep the originals safe; and stay with friends, family or in shelter if it is not safe to stay in your residence. Please note that the Order of Protection is only a sheet of paper, and is only useful if you call the police if it is violated or in the process of being violated.
You can also contact your local domestic violence provider to see if you can enter shelter, or stay with friends or family if you do not feel safe in your own home. Many people are also concerned about the safety of their pets. If you are afraid of leaving your pets, contact your local Domestic Violence provider and ask if they have any foster care programs for your pets while you work out your legal issues.
If you have any further questions, or things do not work out, call Legal Aid.
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If you are in danger of being abused, go to Family Court.
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You should be able to file a petition the day you go to Court.
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To protect yourself and your children, act quickly.
This Lifeline contains general information, and does not constitute individual legal advice about your situation. You should consult with an attorney for individual legal advice about your situation and to find out how this information applies to your situation. To see if you qualify for free legal services, call the Legal Aid office nearest you.
